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HUMAN RIGHTS QUARTERLY
Are lnternational Criminal Tribunals a
Disincentive to Peace?:
Reconciling Judicial Romanticism with
Political Realism
1
.,
Payam Akhavan*
ABSTRACT
A significant challenge to the efficacy of international criminal justice in
global governance is the view that prosecution of political leaders still in
power creates a disincentive to peace and thus prolongs atrocities. While
"judicial romantics" are often oblivious to these complexities, the "political
realists" have failed to demonstrate that tribunals are in fact an impediment
to peace and stability. The impact of the lnternational Criminal Court on
* Elyarn Akhavan SJD(Harvard) is Professor of lnternational Law at McGill University and was
previously Senior Fellow at Yale Law School and Distinguishedvisiting Professor at University
of Toronto. He has published extensively on international criminal law and human rights
including "Beyond Impunity: Can lnternational Criminal Justice Prevent Future Atrocities?,"
95 American lournal of lnternational Law 7 (2001), selected by the lnternational Library of
Law and Legal Theory as one of "the most significant published journal essays in contemporary legal studies." He also authored the "Report on the Work of the Office of the Special
Advisor of the United Nations Secretary-General on the Prevention of Genocide" (2005),
served as Chairman of the Global Conference on the Prevention of Genocide (2007)) and
is Co-Producer of the documentary film Genos.Cide: The Great Challenge (2009). He was
the first Legal Advisor to the Prosecutor's Office of the lnternational Criminal Tribunals for
the former Yugoslavia and Rwanda at The Hague (1994-2000) and appointed as counsel in
several high-profile cases before the lnternational Court of Justice, the lnternational Criminal
Court, and the European Court of Human Rights. He has served the United Nations in Bosnia,
Croatia, Cambodia, Timor Leste, Guatemala, and Rwanda, and his work on accountability
for atrocities, including establishment of the Iran Human Rights Documentation Centre,
has been featured in the New York Times. He was selected in 2005 by the World Economic
Forum as a Young Global Leader, and in 2007r ,he was appointed by the Government of
Canada as a Director of the lnternational ~ e n t r h ~ f Human
or
Rights and Democracy
The author gratefully acknowledges the asststance of Philipp Kastner, Erin Morgan, and
)u\ia Turvey in the preparation of this article.
Human Rights Quarterly 31 (2009) 624-654 O 2 0 0 < 3 ~ he
~ Johns Hopkins University Press
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Are International Criminal Tribunals a Disincentive to Peace?
62 5
three recent situations in Africa suggests that judicial intervention is more
likely to help prevent atrocities rather than impede peace, even if arrest
warrants cannot be executed.
I.
INTRODUCTION
There appears to be intrinsic merit in prosecuting those responsible for
mass atrocities. Leaving such crimes unpunished contradicts our intuitive
conceptions of fundamental justice. An equally unimpeachable goal, however, is putting an end to such atrocities-as they are happening-through
the pursuit of peace. The dilemma is whether, in certain circumstances,
the prospect of prosecution creates a disincentive for implicated leaders to
end war or surrender power. This debate i s embodied in the caricatures of
the naive "judicial romantic" who blindly pursues justice and the cynical
"political realist" who seeks peace by appeasing the powerful. Although
this debate was largely irrelevant in the context of "victor's justice" at the
Nuremberg trials, it is of increasing global importance given the frequency
of situations in which the international cor~~munity
seeks to end atrocities
through negotiation rather than military intervention. It may even be said
that contemporary tribunals are most often a substitute for more forceful
measures against mass atrocities. In light of this reality, a leading criticism
of international criminal tribunals is that they impede peace settlements
and thus prolong atrocities. The assumption is that leaders facing threats of
prosecution are more likely to prolong conflicts that keep them in power
whereas immunity increases the incentives to end atrocities. Beyond ad hoc
tribunals, the gradual permanence of global justice through the International
Criminal Court (ICC) has given the so-called "peace versus justice" debate
a systematic relevance in global governance.
This article sets forth a general framework for assessing the contribution of
international criminal justice to the prevention of atrocities and then examines
the more immediate impact of the ICC on three recent conflicts. These cases
demonstrate that within a broader context of the gradual mainstreaming of
global justice, tribunals alter the cost-benefit calculus of using atrocities as
an instrument of power with often subtle but far-reaching consequences. In
C6te d'lvoire, the mere threat of an IC:C investigation contributed to preventing escalation of an inter-ethnic war by putting an end to state-sponsored
incitement to hatred. In Uganda, ICC arrest warrants against rebel leaders responsible for mass atrocities helped pressure neighboring Sudan to
eliminate a long-standing safe haven for the rebels, bringing to an end a
devastating civil war. Even in Darfur, where there has been little willingness
by the United Nations to support the ICC, the diplomatic maneuverings and
internal political divisions in Sudan indicate that arrest warrants have at the
very least made the continuation of atrocities more costly than before.
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II. THE PEACE VERSUS JUSTICE DEBATE
AND CONTEMPORARY
CONFLICTS
With the unconditional surrender and military occupation of Germany, the
Nazi leaders were in no position to negotiate immunity from prosecution
with the Allied powers. The Nuremberg paradigm of victor's justice precluded any need to balance the demands of peace and justice. The same
circumstances applied to the trials of Japanese leaders before the Tokyo
Tribunal. If anything, upon the conclusion of a war that had consumed
millions of lives, and amidst calls for summary execution of the niuchloathed vanquished leaders, criminal justice was viewed as an expression
of tremendous magnanimity.
With the establishment of the International Criminal Tribunal for the
former Yugoslavia (ICTY) in 1 993, a new model of global justice emerged. As
the evidence of "ethnic cleansing" surfaced, punishing leaders responsible
for such abominations became a moral imperative. Absent a willingness
to intervene, however, the international community had to resign itself to
negotiating a peace agreement with the very same leaders-still in positions
of authority-to put an end to an armed conflict replete with atrocities. Following the 1995 Dayton Peace Accords and the conclusion of the Bosnian
war, this unprecedented situation gave rise to a then famous debate in the
pages of this journal as to how peace and justice could be reconciled.' The
ICTY model of justice, which established a pattern that has since repeated
itself, draws on this debate in response to scenarios where the imposition
of victor's justice is impossible.
A qualified exception to this post-Nuremberg pattern of justice is the
International Criminal Tribunal for Rwanda (ICTR), which was established
in 1994 after the military defeat of the g6nocidaires by the Tutsi-led Rwandese Patriotic Front (RPF). Unlike Nazi Germany, this was not a situation of
unconditional surrender. Hutu extremist insurgents continued to attack the
new Rwandan government from the territory of what was then Za'ire, and
from 1998 onwards, the spillover of the conflict claimed three to four million victims in the newly established Democratic Republic of Congo (DRC).
Nonetheless, the ge'nocidaire leadership was largely relegated to seeking
asylum in various countries from which they were eventually arrested and
surrendered for trial before the ICTR. -the pattern of global j ~ ~ s t i cthat
e started
with the ICTY resumed with the hybrid U N tribunals in Sierra Leone, Timor
Leste, and Cambodia, as well as the ICC, all of which have had to operate
1.
See Payam Akhavan, The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond, 18 HUM. RTS. Q. 259 (1996); Anonyrnol~s,Human Rights in Peace
Negotiations, 18 HUM. RTS. Q. 249 ( 1 996).
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Are International Criminal Tribunals a Disincentive to Pqce?
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in circumstances where implicated leaders still retained some measure of
power. This post-Nuremberg model of tribunals has become increasingly
entrenched. For better or worse, aside from such notorious precedents as
Saddam Hussein's trial before the Supreme Iraqi Criminal Tribunal, very few
instances of victor's justice exist in the contemporary world. From Bosnia
to Rwanda to Darfur, the international community has used tribunals more
as a substitute for rather than a complement to forceful measures to protect
civilians against mass murder.
At the same time, these once-sacrosanct tribunals that were considered
to be the only glimmer of hope where there was no willingness to intervene have been criticized as wasteful and elitist institutions that exacerbate
rather than prevent a t r o c i t i c ~ In
. ~ the post-euphoria phase of global justice,
it has been increasingly argued that local solutions, such as amnesties in El
Salvador and Mozambique, have been "highly effective in curbing abuses
when implemented in a credible way,'' and that, combined with truth and
reconciliation cornniissions, these measures have achieved better results
than international prosecution^.^ Most notably, the South African Truth and
Reconciliation Commission has been praised for ensuring a peaceful transilion froni apartheid to a multiracial democracy.
In this light, the so-called "peace versus justice" debate has assumed a
broader systemic dimension as it grapples with the gradual permanence of
tribunals in situations where leaders responsible for atrocities still exercise
power and where the pursuit of justice often competes with the imperative
of a peaceful transition. What then is the context in which to assess the
interrelationship of tribunals with peace negotiations and their impact on
preventing future atrocities?Beyond speculative assertions, whether of judicial
romantics or political realists, how can the experience of institutions like
the ICC inform an increasingly complex and vital debate on accountability
as an ingredient of global governance?
2.
3.
4.
Some commentators have vigorously criticized international cri~minaltribunals, arguing
inter alia that "they have squandered billions of dollars, failed to advance human rights,
and ignored the wishes of the victims they claim to represent." See Helena Cobban,
Think Again: International Courts, FOK~IGN
POL'Y,Mar./Apr. 2006, at 22, 22.
Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies
of International Justice, INT'LSECURITY,Winter 2003/04, at 5, 6.
HEIFNA COBBAN,
AMNESTY
AFTER
ATROCITY?
HEAIING NATIONS
AFTER
GENOCIDF
AND WAKCRIMI.S
194
(2007). For a more general discussion on truth commissions, see Jonathan D. Tepperman,
Truth and Consequences, FOR~IGN
AFF.,Mar./Apr. 2002, at 128.
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Ill. THE GLOBAL CONTEXT: 'TRIBUNALS, GENERAL DETERRENCE,
A N D PEACE
A. I s There a Cost-Benefit Calculus to Radical Evil?
Many imperatives, including national reconciliation, vindication of victim
suffering, or symbolic breaks with the past, are invoked to justify tribunals.
While these objectives are broadly related to preventing the recurrence
of atrocities, the central utilitarian argument in support of tribunals is the
nebulous "deterrence" function of prosecutions. How can global imperatives
such as deterrence be defined and reconciled with the immediate exigencies of local contexts in the midst of armed conflict or political transitions?
The domestic justifications for criminal punishment-themselves il I-defined
and speculative-cannot be casually transplanted into the context of mass
atrocities. While retribution for "radical evilv5may be morally persuasive,
utilitarian objectives such as deterrence are seemingly elusive. Some would
argue that the all-consuming primordial hatreds that motivate genocide defy
the simplistic rationalist assumption of cost-benefit calculus by perpetrators
upon which modern deterrence theories are b a ~ e dEven
. ~ the more flexible
notion of "general preventionv-i.e., socio-pedagogical stigmatization of
crime through judicial process, leading to the reinforcement of habitual
lawfulness-seems to collide with the inverted morality of genocide that
elevates mass murder to an expression of glorious heroism. We are dealing
with societies where the intended victims have been so thorougt-~lydehumanized that their extermination is equated to getting rid of infestation by
"vermin" or "cockroaches." The perversity and success of genocidal ideologies
from Nazi Germany to Rwanda i s their ability to appropriate the discourse
of lofty and noble causes to justify radical evil, to transform unspeakable
cruelty to commendable acts of "cleansing" and "purification." Bearing this
reality in mind, if a man is capable of disemboweling pregnant women or
ordering the rape of children merely because they belong to the "wrong"
race, will he pause to consider that his conduct may lead to prosecution?
Within such an aberrant context, how can the credible threat of punishment
contribute to the prevention of atrocities?
The proponents of global justice emphasize that such "broader deterrent
ambitions are dependent upon the capability and willingness of powerful
states to back them up."' Others point out that while it is "impossible to
5.
6.
7.
'
I OF TOTALITARIANISM
In the words of Hannah Arendt in THEORIG'INS
(1 951).
See, e.g., Cobban, Think Again, supra noje 2.
Kenneth A. Rodrnan, Darfur and the Limits of Legal Deterrence, 30 HUM. RTS.Q. 529,
560 (2008).
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prove that war crimes prosecutions deter future atrocities. . . . evidence
presented at the recent tribunals strongly suggests that the failure to prosecute perpetrators such as Pol Pot, Idi Amin, Saddam Hussein, Augusto
Pinochet, and Papa Doc Duvalier convinced the Serbs and Hutus that they
could commit genocide with i m p ~ n i t y . "As
~ discussed below, there may
be general merit to the argument that with effeclive enforcement, tribunals
can contribute to the long-term transformation of the boundaries of power
and legitimacy. Without understanding the particular anatomy of genocidal
violence, however, these specious utilitarian justifications fail to adequately
explain how the credible threat of punishment can influence behavior in
the extreme context of radical evil.
In considering the peace versus justice debate, a preliminary question is
why the burden of proof rests with the proponents of justice. If retribution is
a worthy moral objective, is a favorable impact on peace a requisite justification for tribunals, or can this effect remain indeterminate? Is it necessary to
try to measure deterrence with mathematical precision to satisfy the skeptics?
What is the quantum of proof required for what is evidently not an exact
science? As set forth below, what can be ventured by way of soft empiricism i n the nascent ICC system suggests that while prosecutorial discretion
must adapt to the complexities of each situation, there is little evidence to
support the contention that tribunals are a disincentive to peace, whether in
negotiations or post-conl'lict peacebuilding. O n the contrary, some indicia
show that the mere threat of prosecution may have a stabilizing effect by
exacting a cost for continuing atrocities and by undermining the power of
genocidal leaders whose manifest treachery often renders unrealistic the
prospect of good faith peace negotiations.
Admittedly, it is difficult to presume that ruthless warlords and genocidaires are rational actors who w i l l invariably engage in a dispassionate
analysis of whether atrocities are a cost-effective instrument of power i n
view of possible prosecution. However, there is also a temptation to depict
such leaders as repositories of mystical diabolical forces whose primordial
power-lust is inscrutable. This fashionable rebuke of rationalism has to account for the hard political calculus of mass atrocities, even if clothed in the
guise of visceral conflicts of identity. Just as the judicial romantics are not
realistic about the limits of ritualistic ordering of overwhelming evil through
criminal trials, the political realists often romanticize the profane rules of
political conflict as inexorable outbursts of tribal hatred in exotic lands. This
8. Michael P. Scharf, lostling overlustice, FOREIGNPOL'Y, May/June 2006, at 6, 7. For a study
o n contribution o f international criminal justice to deterrence, see David Wippman,
Atrocities, Deterrence, and the Limits of InternationalJustice, 23 FOROIHAMINT'L L.J. 473
(1 999).
630
Vol. 31
essentialized view of identity disregards the pliability and instrumentalization
of ethnicity by political elites as a means of acquiring and consolidating
power. Far from being a spontaneous outburst of tribal hatred, genocidal
policies require considerable planning and preparation in addition to efficient
organization and utilization of resources under strong and unified leadership.
Permutations of this political logic of hate-induced identity homogenization
leading to atrocities can be discerned in a wide variety of contexts from Nazi
Germany and the former Yugoslavia to Rwanda and Darfur. It suggests that
somewhere in the anatomy of genocide lies a cost-benefit calculus, however
diabolical its parameters may be. It is in this regard that the romanticization
of genocidal violence in the name of political realism overlooks the potential
impact of tribunals on the behavior of political leaders.
B. The Complexities of Justice
In contrast with the so-called political realists, the judicial romantics are wont
to gloss over the complexities of conflicts by creating an idyllic meta-political
sphere within which justice is done. The immediate impact of tribunals on a
peace settlement or surrender of authoritarian rule in a particular situation
cannot be disregarded merely because of an asserted broader, more gradual
impact on global deterrence and peace. In certain circumstances, political
compromise or alternatives to prosecution may be a necessity that cannot be
easily escapedagSome stakeholders believe that the immediate need to save
lives outweighs any speculaiive deterrent effect of justice. Furthermore, even
the proponents of tribunals have to acknowledge at some point that power
realities may dictate whether lofty ideals of accountability are realistic or not.
Absent victor's justice, where accused leaders are dethroned and neutralized, impl-~nityand even power sharing may appear to be the most viable
options for negotiating an end to hostilities or authoritarian rule. So long as
a demagogical head of state or warlord is firmly in power, an indictment by
a tribunal may merely imply the inconvenience of not being able to travel
abroad and-as demonstrated by the travels of Sudan's President Bashir to
certain sympathetic countries despite the ICC arrest warrant against himeven that restriction may be partially circumvented. Some would add that
given the xenophobic or exclusionary nature of genocidal ideology, isolation
from the international community might actually strengthen leaders who prey
on fears and hatred rather than promote the freedom and prosperity of their
9.
For a discussion on a necessity exceptiar{ i o prosecutions in certain situations, see
0 arry l Robinson, Serving the Interests of justice: Amnesties, Truth Commissions and the
International Crinlinal Court, 14 EUR. j. INT'LL. 481, 493 (2003).
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citizens.1° Thus, the indictment of a charismatic leader or self-proclaimed
nationalist savior may even transform him into a martyr among followers
saturated with an "us" against "them" mindset.
The quixotic project of judicial romantics often neglects the complexities that tribunals must navigate in the context of peace negotiations and
peacebuilding, even if the decision to opt for a political compromise is
made by other actors. lnternational criminal justice operates in a multifaceted situation with multiple stakeholders who must make difficult political
choices. Furthermore, even if a prosecutor is adamantly non-political, seemingly routine investigative and prosecutorial decisions may invariably have
far-reaching political implications that cannot be easily dismissed. Unlike
domestic judicial systems, where prosecution of serious crimes such as murder or rape is usually not subject to discretion, international jl~dicialsystems
necessarily must exercise such discretion. The combination of such factors
as the multiplicity of serious crimes, barriers to investigations and arrests,
the cost and length of trials, and the capacity of tribunals only to prosecute
a handful of perpetrators, makes it difficult simply to "follow the evidence"
in deciding who to indict. The policy of the ICC is to pursue those "who
bear the greatest responsibility" for international crimes." Does this imply
that only leaders above a certain rank should be prosecuted? What about
the "willing executioners" of criminal designs hatched by such leaders?Are
so-called "small fish" obviously less responsible?
In peace negotiations, as well as post-conl'lict peacebuilding, these
difficulties are exacerbated by the impact that these choices will have on
military stability and national reconciliation. Some argue that there must
be a "sequencing" of investigations, indictments, and the issuance of arrest warrants to ensure that tribunals will not impede peaceful outcomes to
conflict. Others maintain that such considerations politicize the institutions
tasked with delivering impartial justice.12 In any event, this is not a question
of impunity but rather a question of astute timing. In the DRC for instance,
the ICC initially focused its investigations on the lturi province, rather than
North and South Kivu where mass atrocities were also committed. The pres-
10.
11.
12.
In this respect, see the discussion on the indictment of President Bashir of Sudan below.
Office of the Prosecutor, Int'l Criminal Court (ICC-OTP), Paper on Sonie Policy Issues
Before the Office of the Prosecutor (Sept. 2003), available at http:Nwww.amicc.or~ciocs/
OcampoPolicyPaper9-03.pdf.
The ICC Prosecutor has strongly condemned the strategy of sequencing ICC decisions
with peace negotiations. Luis Moreno-Ocampo, Chief Prosecutor, Int'l Criminal Court,
Keynote Address.at theYale Law ~ c h b oConference:
l
The Pursuit of lnternational Criminal
Justice:The Case of Darfur (6 Feb. 2009), available at http://www.icc-cpi.int/NR/rdonlyres/
F04CB063-1C1 E-463E-B8F8-5ECE076FBlE0/279792/090206~ProsecutorskeynoteaddressinYale.pdf.
H U M A N RIGHTS QUARTERLY
ence of peacekeepers from the U N Mission in the DRC (MONUC) in lturi
greatly facilitated the security required for conducting on-site investigations.
Furthermore, the insurgents in lturi did not have substantial links with the
DRC government upon which the ICC depends for judicial cooperation.13
The situation'is different in the Kivus where an ICC investigation would have
encountered more significant obstacles.14 How should a prosecutor assess
such constraints or opportunities in deciding how to prioritize or sequence
investigations while maintaining in- partiality and independence?
Additional considerations arise when a prosecutor selects targets for
investigation in an inter-ethnic conflict where atrocities have been overwhelmingly committed by one side against the other. Should all parties be indicted
to preserve an image of impartiality?This approach is reflected in the ICTY
prosecutor's decision to prosecute Bosnian Muslim and Albanian leaders
and military commanders who were either acquitted or received nominal
sentences for crimes that were dwarfed by those committed by Bosnian Serbs,
such as the 1995 Srebrenica genocide in which some 7,000 Muslims were
executed. Does such an approach'pose a danger of inadvertently equating
impartiality with moral parity in a one-sided situation?
This dilemma is rendered even more complicated for the ICC because
of the "complementarity" scheme, which gives the primary responsibility to
national courts where they are "willing" and "able" to genuinely prosecute
international crimes.15There is nothing to impede states parties from making
"self-referrals" where they voluntarily relinquish national jurisdiction to the
ICC. Although the ICC ultimately determines if it will exercise jurisdiction,
some commentators have expressed misgivings about the one-sided nature
of such referrals. Consider the case of the Lord's Resistance Army (LRA) in
Uganda. For almost two decades, the LRA insurgents had committed mass
atrocities against civilians, including recruitment of tens of thousands of
under duress. The govchild soldiers who terrorized their own comm~~nities
ernment's counterinsurgency campaign involved abuses such as the forced
displacement of populations in camps as a security measure. While the ICC
13.
14.
15.
More recently, the Congolese authorities have also arrested former insurgents who had
established closer links to the government. Mathieu Ngudjolo Chui had even been integrated as a colonel into the national armed forces of the DRC when he was arrested
and surrendered to the Court by the DRC authorities. See Press Release, Int'l Criminal
Court, Third Detainee for the lnternational Criminal Court: Mathieu Ngudjolo Chui (1 8
Jan. 2008).
The ICC announced in April 2009 that the third DRC investigationwould focus on the Kivu
provinces. Fifteenth Diplomatic Briefing of the lnternational Criminal Court, compilation
of Statements (7 Apr. 2009), available at http://www.icc-cpi.int/NR/rdonlyres/l E5F488B2 FA9-40F4-9378-A386AF6CBA6E/280246/CompiationofStatementsl5~DS.pdf.
Rome Statute of the lnternational Criminal Court, adopted 17 July 1998, art. 17, U.N.
Doc. AlCONF.183/9 (1998) (entered into force 1 July 2002).
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Prosecutor has been criticized for delivering one-sided justicelh and failing
to recogriize the true problem of impunity in this situation," i s it appropriate to equate the scale and natclre of atrocities committed by government
forces with those committed by the LRA?
Such choices have an obvious impact on various issues such as the prioritization of limited resources based on the gravity of crimes, dependence
on governments for security and judicial c o ~ p e r a t i o n ,long-term
~~
capacity
building by national courts, a sense of domestic ownership of justice for
past abuses, perceptions of impartiality in deeply divided nations, and the
role of alternative accountability mechanisms like truth commissions and
traditional justice. While judicial romantics have not adequately incorporated these corr~plexitiesinto the international criminal justice equation, the
assumption that international criminal justice is oblivious to hard political
choices has been supplanted by the Rome Statute. Article 53(1)(c) expressly
recognizes that a prosecutor must consider whether "taking into account
the gravity of the crime and the interests of victinls, there are nonetheless
substantial reasons to believe that an investigation would not serve the
interests of justice."lg
Leaving aside these considerations, the more fundamental question
remains as to whether tribunals that are adequately responsible to political
16.
17.
18.
19.
RIGHTS
WATCH
(HRW), COURTING
HISTORY:
THELANDMAKK
INTERNATIONAL
CRIMINAL
See, e.g., HUMAN
COURT'S
FIRSTFIVEYEARS
41 (July 2008), available at http:Nhrw.orglreports/2008/icc0708/
icc0708web.pdf. Shortly after the referral of the situation to the ICC Prosecutor, Human
Rights Watch had already called for investigations into crimes committed by government
troops. See News Release, HRW, ICC: Investigate All Sides in Uganda (4 Feb. 2004),
available at http://www.hrw.orglen/news/2004/02/04/icc-investigate-all-sides-uganda.
See also TIM ALLEN,
TRIAI.JUSTICE:
THEINTERNATIONAL
CKIMINAI.
COURT
AND TIHELORD'S
RESISTANCI
ARMY98 (2006).
William Schabas, First Prosecutions at the lnternational Criminal Court, 2 7 HUM.RTS.
L.J. 25, 31 (2006). Some commentators, including Schabas, have also argued that the
ICC should not have accepted Uganda's self-referral, arguing that Uganda is able and
willing to prosecute the LRA leaders. Others, including the author, have argued that.
this situation must be analyzed under the premise of positive complementarity. See
Payam Akhavan, The Lord's Resistance Army Case: Uganda's Submission of the First
State Referral to the /~?ternationalCriminal Court, 99 AM. 1. INT'LL. 403, 41 3 (2005).
For an analysis of the cooperation regime of the Rome Statute, see Rod Rastan, The
OF THI.
Responsibility to Enforce-Connecting Justice with Unity, in THEEMERGING PRACTICE
INTERNATIONAL
CRIMINAL
COURT
163 (Carsten Stahn ed., 2009).
1 have argued elsewhere that "[tlhis aspect of prosecutorial discretion is particularly
important when investigations or prosecutions may arguably prolong or aggravate an
ongoing conflict or undermine a fragile peace process." Akhavan, The Lord's Resistance
Army Case, supra note 17, at 41 6. The Office of the Prosecutor, while emphasizing the
importance of protecting victims and witnesses, has suggested that article 53(l )(c) is to
be interpreted narrowly and that a decision not to proceed on the basis of the interests
of justice should only be made as the last resort. ICC-OTP, Policy hper on the Interests
oflustice (Sept. 2007), available at http://www.icc-cpi.int/NR/rdonlyres/772C95C9-F54D432 1-8F09-73422 BB23528/143640/ICCOTPlnterestsOfJustice.pdf.
complexities within the proper scope of their judicial functions may still
impede peace negotiations and induce leaders to prolong atrocities. At the
theoretical level, this may involve a balancing of interests between achieving global deterrence by avoiding precedents of negotiated impunity on the
one hand, and on the other, addressing the immediate need to stop further
victimization at the hands of ruthless leaders who will do whatever is necessary to preserve their interests. As is often the case, the way in which these
tensions play out in reality is considerably more complex than abstract debates
may suggest. Despite this complexity, case studies reveal a certain simplicity
as to how the credible threat of punishment, or the mere stigmatization of
indictment, influences the behavior of such ruthless leaders.
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IV. MEASURING PREVENTION: RECENT ICC CASE STUDIES
I have attempted elsewhere to delineate the impact of tribunals on the prevention of atrocities based on the early experience of the ICTY and ICTR.*O
That inquiry focused on preventing atrocities in the context of post-conflict
peacebuilding, as the operation of those ad hoc tribunals coincided with
the conclusion of hostilities. In Bosnia and Herzegovina, the indictment of
hate-mongering leaders such as Radovan Karadiid and Ratko Mladid and
their political marginalization helped stabilize the fragile multiethnic federation envisaged by the Dayton Peace Accords. In Rwanda, the indictment of
the ge'nocidaires undermined their capacity to reconstitute and legitimize
themselves. With the passage of nearly a decade since that inquiry, and with
the emergence of the ICC as a functioning tribunal, now there are considerably more cases to study. Given the ICC's permanent status, its preventive
capacity is at least notionally enhanced because, unlike the ICTY and ICTR,
[here is no lapse of time between the commission of atrocities and the estab1ishment of its jurisdiction. Although this applies more directly to states
that have ratified the Rome Statute, it is also relevant for states that face the
prospect of a Security Council referral under Chapter VII of the UN Charter.21 Furthermore, because the ICC has been vested with jurisdiction over
cases that involve impending or ongoing atrocities, it is possible to assess
its impact in circumstances other than post-conflict peacebuilding.
In the popular imagination, the prosecution of Thomas Lubanga Dyilo in
situation or that of Jean-PierreBemba in the Central African Republic
the
Dw
20.
21.
See Payam Akhavan, Beyond Impunity: Can International Criminal justice Prevent Future
Atrocities?, 95 AM. J. INI'L L. 7 (2001).
According to Article 13(b) of the Rome Statute, the Security Council can refer a situation to the ICC Prosecutor, which triggers ICC jurisdiction also for states that have not
ratified the Rome Statute or made an ad hoc declaration under Article 12(3).
I
I
f
l
%
I
)
.
+
4
;
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(CAR) situation may be the success stories of the ICC. Although a defendant
on trial offers a reassuring image, the situations in which no arrests have
been made may better demonstrate the ICC1spreventive effect. The examples
discussed below provide guidance as to the impact tribunals can have on
ending atrocities even if they are unable to execute arrest warrants and where
leaders still in power may prolong or escalate atrocilies to extort an amnesty
from ICC indictments. I have deliberately selected three ICC situations where
no perpetrators have been apprehended or where no indictments have been
issued: C6te d'lvoire, a voluntary acceptance of ICC jurisdiction by a nonstate party according to Article 12(3)of the Rome Statute; northern Uganda, a
voluntary referral by a state party to the ICC; and the Darfur region of Sudan,
a compulsory Chapter VI I Security Council referral.
Before undertaking the case studies, I must first address some prevalent
misconceptions that shape the peace versus justice debate. First, one cannot
dssume that a "power reality" is an immutable state of affairs. While there
are obvious limitations on what can be achieved in any given situation, the
political realist argument is often invoked to justify inaction by the international
community. Appeasement of perpetrators or simple indifference to the victims
of atrocities is itself a "reality" constructed by those who have the means to
intervene but lack an incentive to do so. In Bosnia, the ICTY was effective
because robust U N peacekeepingand economic aid conditionality were t~sed
to ensure that fugitives were apprehended or at least eliminated from the political stage. By contrast, as we will see below, in Darfur, Sudanese cooperation
in the "war on terror," energy security, and other geopolitical considerations
have ensured that the Security Council does not impose a meaningful cost on
Khartoum for its intransigence against the ICC. Thus, it is more appropriate
to describe these choices as "priorities" rather than "realities."
Second, one cannot assume that if prosecutions are a potential disincentive to peace, then impunity will necessarily be an incentive. Not only is such
an approach far from realistic, it is also often oblivious to the psychology
of political violence and the presumed need to negotiate from a position
of strength in order to end atrocities. The example of Foday Sankoh, the
murderous leader of the Revolutionary United Front (RUF) in Sierra Leone,
vividly demonstrates this point. In the negotiations to end Sierra Leone's civil
war, Sankoh requested an amnesty for the massive atrocities committed by
his soldiers in order to maintain his grip on power in rebel-held territories,
including control of diamond mines. Apparently, Sankoh interpreted the
amnesty granted to him and his combatants in the 1999 Lon16 Peace Accord,
which was brokered by the international community,22and a vice presidential
22.
Peace Agreement Between the Government of Sierra Leone and the Revolulionary United
Front of Sierra Leone (Lome Peace ~ireement),U.N. SCOR, U.N. Doc. S/1999/777
(1999).
63 6
Vol. 31
appointment, as signs of weakness. He responded to these positive incentives
for a peace settlement by attempting to overthrow the government rather
than accepting a power-sharing agreement. Sankoh presumably asked himself
why he should stop the atrocities if such conduct had been rewarded with
a vice-presidential appointment and control of diamond mines.23
A third misconception is that the preventive impact of tribunals must be
measured in a mechanistic "cause and effect" manner. Given the complexity
of factors that constitute a political reality, the best approach would be to
show that tribunals have an appreciable role in concert with other measures.
It is obvious, for instance, that the ICTY had greater preventive impact in
Bosnia than the ICC has had in Darfur because of the link between the
surrender of accused persons and punitive sanctions by the international
community. Thus, while it is difficult to locate an exact cause amidst multiple
factors, it may still be possible to broadly assess how tribunals can alter the
cost-benefit calculus of criminal conduct. While this analysis ultimately
depends on political variables external to the normal functioning of judicial
institutions, the selection of seemingly weak situations where the ICC exerts
little coercive power may be the best indicia of whether tribunals can have a
preventive impact. In the post-Nuremberg context, these cases may be most
relevant to dealing with the contention that absent victor's justice, tribunals
must remain hostage to power realities.
A. Prevention of Escalation: The Case of C6te d'lvoire
The most obvious (though overlooked) contribution of tribunals to peace is
preventing atrocities before they escalate into genocidal or similar violence.
The potential constraint imposed by tribunals is significantly diminished
once limited conflict explodes into mass murder. Furthermore, justice in the
post-conflict peacebuilding phase assumes that massive victimization has
already occurred. Prevention of genocide rather than deterrence after the fact
i s obviously the best policy. Because successful prevention is measured by
what does not happen, it is particularly difficult to assess. This recognition
is especially pertinent for tribunals that are often judged solely in terms of
defendants on trial (or at least fugitives on the run), rather than the looming
threat of indictments. Nonetheless, the example of the ICC's impact on the
civil war in C6te d'ivoire i s a compelling demonstration of how international
tribunals can help prevent human rights abuses from escalating into mass
murder merely by threats of prosecutions.
23.
Sankoh was eventually arrested and, in 2003, indicted by the Prosecutor of the Special
Court for Sierra Leone. Prosecutor v. Sankoh, Case No. SCSL 03-02-1, Indictment (7 Mar.
2003).
f
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63 7
The shift in emphasis to prevention prior to mass atrocities is fundamental
to how the efficacy of tribunals i s conceived. Many observers pointed to
the 1995 Srebrenica genocide as an example of the ICTY's failure to deter
perpetrators like Karadlid and MladiC who had already been indicted. This
argument disregards the fact that at that point in the conClict, the "ethnic
cleansing" campaign had already reached its pinnacle. The most realistic opportunity for influencing the cost-benefit calculus of resorting to mass atrocities as an instrument of power is before the full force of hate-mongering and
systen~aticviolence has been unleashed. In the civil war in CBte d'lvoire, the
pre-genocidal dynarrlics of the conflict afforded an opportunity for substantial
preventive impact. In this instance, mere threats of ICC prosecutions may
have resulted in the termination of hate broadcasts on the state-sponsored
radio at a crucial point of escalating tensions. Although it may be difficult
to appreciate just how significant terminating hate speech on a radio station
can be to preventing mass murder,, one should consider that incitement to
hatred by RTLM radio in Rwanda was crucial to the success of the 1994
genocide. Given that 70 percent of the population was illiterate and lived
in remote locations, many used the radio as their sole source of information. Without its steady stream of incendiary anti-Tutsi demonization and
incitement to genocide, it would have been far more difficult to mobilize
the masses required to exterminate close to one million Tutsis. One must
consider this precedent, including the important role of radio broadcasts
on the population and the dynamics of the civil war, when evaluating the
ICC's impact in CBte d'lvoire.
Since the end of President Felix Houphouet-Boigny's decades-long rule
in 1993, which coincided with an increasingly precarious econon-~icsituation, this former French colony has been in a difficult transitional period.
Those aspiring to succeed Houphouet-Boigny in the 1995 elections gathered
support according to ethno-regional origins, an irrlportant issue being the
approximately 25 percent of the population who were foreign workers,
predominantly from Burkina Faso, or citizens who were their descendants.
Political leaders and the media exploited the-term ivoirit6, which originally
referred to the common cultural identity of all Ivorians, in a nationalistic,
often xenophobic way, suggesting that only those from the southern region
and the capital Abidjan were true citizens, to the exclusion of immigrants
and citizens born in the north.24Moreover, a new constitutional provision
stipulated that a presidential candidate must be Ivorian-born of parents who
24.
For more information on the concept
ivoiritk, see JUDITH RUEFF,C ~ TU'IVOIKE:
E
LE FEU AU
P R ~ .C A R R ~22 (2004); THOMAS
HOFNUNC,
~ b'CRISE
, EN C ~ TD'IVOIRE:
F
DIXC I ~ SPOOR LOMI'RENDRE32
(2005). See also INT'L CRISIS
GROUP,
COTE D'IVOIRE:NO PEACE
IN SIGHT 3 (July 2004).
638
Vol. 31
were both born in C6te d'lvoire, thus excluding the influential "northerner"
Alassane Ouattara from the elections.25
Tensions ultimately erupted into ethnic violence against Burkinab6 and
~
other Muslim groups in the north, leading to armed c ~ n f l i c t . 'Coinciding
with the 2002-2003 escalation of hostilities between the government of
nt
and rebel forces (called the "New Forces") in
President L a ~ ~ r e Gbagbo
northern C6te d'lvoire, there was a dramatic increase in radio broadcasts
inciting hatred and violence against those deemed to be non-lvorians. The
Global Policy Forum remarked: "The broadcasts reminded many observers
of Rwandan radio during the genocide of 1994, in which 800,000 people
were massacred in 100 days."27AS in Rwanda, these broadcasts significantly
influenced the perceptions of the conflict among the public in C6te d'lvoire,
resulting in widespread violence and looting by pro-government rrrilitias and
armed groups linked to the rebels with complete impunity.2R
In a January 2003 peace accord, the "government of reconciliation"
recognized the crucial role played by the media, condemned the incitement
to hatred and xenophobia, and committed itself to guaranteeing the neutrality
and independence of the public service.29The media, however, continued to
fuel politico-ethnic violence. Most notably, a November 2004 government
offensive against the New Forces was backed by a media campaign against
Moreover, Ouattara, a high official of the lnternational Monetary Fund in Washington,
D.C., did not fulfill the requirement of having lived in C6te d'lvoire for five years presupra note at 33. This provision produced its desired
ceding the elections. See HOFNUNC,
effect and the Supreme Court excluded Ouattara from the 2000 elections because of
his "dubious nationality." See id. at 34, 42. More than 200 people were killed due to
politico-ethnic violence in the run-up to the 2000 elections. See News Release, HRW,
CBte d'lvoire: Abuses Threaten Run-Up to Elections (25 May 2006), available at http://
www.hrw.or~en/newsR00G/05/23/c-te-d-ivoire-abuses-threaten-run-elections.
26. In 2001, Human Rights Watch had already reported that "[Ileading government officials
in C8te d'lvoire have incited a violent xenophobia that is threatening to destabilize
the country." HRW, T t i ~NEWRACISM
(Aug. 2001), available at http:Nwww.hrw.org/en/
reports/2001/08/28/new-racism.
27. Brent Gregston, Rwanda Syndrome on the Ivory Coast, WORLDPRESS.~RG,
30 NOV.2004,
available at http:Nwww.globalpolicy.org/security/issues/ivory/2004/1130rwandasyndrome.
htm.
28. News Release, HRW, C6te d'lvoire: Militias Commit Abuses with Impunity (27 Nov. 2003),
available at http://www. hrw.org/en/news/2003/11/2 7/c-te-d-ivoire-militias-commit-abusesimpunity. For more information on the crimes committed by pro-government militias,
the recruitment of Liberian children by the government, and the abuses committed by
the New Forces, including torture and summary execution, see News Release, HRW,
C6te d'lvoire: Government Recruits Child Soldiers in Liberia (28 Oct. 20051, available at
http:Nwww.hrw.org/en/news/2005/10/28/c-te-divoire-government-recruits-chiId-soldiersliberia.
29. The text of the Linas-Marcoussis Accords and its annex are available in the French version of the lnternational Crisis Group report C6te d7voire: No Peace in Sight. INT'I
CRISIS
GROUP,
C ~ TD'EIVOIRE:
PASDE PAIX FN VUE 36 (July 2004).
25.
2009
f
63 9
northerners, immigrants, and French citizens.1° At the same time, opposition
newspapers#were shut down and the FM transmitters of international radio
stations, including those of Radio France lnternationale (RFI) and the BBC,
were sabotaged by pro-government militia^.^'
On 6 November 2004, an aerial attack by the Ivorian army on French
troops, which had intervened in CGte d'lvoire after the failed 2002 coup
against President Gbagbo and had helped secure the subsequent de facto
separation of the country,32 killed nine French soldiers. Although France
had largely tried to remain neutral in the conflict, it responded by destroying CGte d'lvoi re's air force. Immediately, hate messages were launched
by the government-controlled Radio Tklevision lvorienne (RTI) and Radio
C6te d'lvoire (RCI), which called on the "patriots" to save the country from
the "French imperialists" and to "take over the streets of A l ~ i d j a n . "This
~~
incitement mobilized a mob that attacked French civilians and pillaged and
destroyed the buildings of French institutions and businesses in Abidjan.'"
O n 15 November 2004, the UN Security Council adopted Resolution
1572, demanding that the government "stop all radio and television broadcasting inciting hatred, intolerance and violence." At the same time, the
UN Special Advisor on the Prevention of Genocide, Juan Mendez, issued a
statement recalling that the government has "an obligation to end impunity
and to curb public expressions of racial or religious hatred especially those
aimed at inciting violence." He emphasized that "in the absence of effective action by courts of national jurisdiction, incitement to violence directed
against civilians or ethnic, religious or racial communities can be subject to
international action, including under the Rome Statute of the International
t
30.
31.
32.
33.
34.
ON A PRECIPICE:
THEPRE('AKIOUS
STATEOF HUMAN
RIGHTS
AND CIVII.IAN
PROTFC-TION
IN
HRW, COUNTRY
COTED'IVOIRE
(May 2005), available at http://www.hrw.org/en/reports/2005/05/03/countryprecipice-0.
Press Release, Reporters Without Borders, Abidjan State Media Mix Propaganda, Disinformation and Incitement to Riot (10 Nov. 2004), available at http://www.rsf.orgl
article.php3?id-article=l 1824. RFI, in particular, had been accused since 2002 by the
pro-government media of supporting the rebels. See HorNuNc, supra note 24, at 81.
The intervention of some 4,000 French soldiers, called "Operation Licorne," was given
a mandate ex-post by the Security Council in Resolution 1464 (20031, which authorized
the deployment of an additional 6,000 U N peacekeepers. For more information on the
role of the Licorne troops, see INT'LCRISIS
GROUP,
CC~TE
D'IVOIRE:
NO PLACE
IN SICI~T,
supra
note 24, at 20; RUEFF,
supra note 24, at 101.
See Press Release, Reporters Without Borders, supra note 31.
Human Rights Watch reported that "spurred on by broadcasts over state radio, progovernment militias in Ivory Coast gathered their machetes and set off to attack French
civilians in the commercial capital, Abidjan." News Release, HRW, Now, Protect lvoirian
Civilians (1 6 Nov. 2004), available at http://www.hrw.org/en/news/2004/11/16/nowprotect-ivoirian-civilians.
640
Vol. 31
Criminal
Although Cbte d'lvoire had not ratified the Rome Statute,
the governnlent had made an ad hoc declaration under Article 12(3) in April
2003 recognizing the Court's j u r i s d i ~ t i o n . ~ ~
Following this threat of potential ICC prosecution against President
Gbagbo, the situation changed. The Committee to Protect Journalists observes that, in itial ly, these xenophobic broadcasts incited tens of thousands
to take to the streets in a campaign of violence and looting. In other words,
the use of hate propaganda successfully incited mob violence, thus serving
as a highly effective instrument of political power. Pointing to how threats
of prosecution effectively altered the cost-benefit calculus, the Committee
observes that "[t] he 'hate' broadcasts stopped only after Juan M h d e z , the
UN adviser on preventing genocide, warned that the situation could be
referred to the International Criminal C ~ u r t . " ~Although
'
it is difficult to
ascertain the exact impact of the credible threat of ICC intervention, it is
wholly reasonable to conclude that it set into motion a chain of events that
significantly contributed to preventing the escalation of ethnic violence in
Cbte d'lvoire. Earlier threats made in January 2003 by the French President
to 1101d Gbagbo accountable before the ICC for the crimes committed during the 2002 crisis'R must be considered less persuasive at that time due
to the nascent stage of the ICC. In November 2004, however, already two
situations, namely Uganda and the DRC, had been referred to the Court.
The fact that there was no investigation or arrest warrant in Cbte d'lvoire, let
alone a trial, was not a decisive factor. The genuine prospect of being held
accountable before an international tribunal was an incentive to stabilize a
volatile situation, thus serving as a tool in the pursuit of peace.
In assessing President Gbagbo's reaction, it is important to situate the
specific example of C6te d'lvoire in the broader context of general deterrence. In light of the precedents of Bosnia and Liberia, where international
forces arrested war criminals and transferred them to the ICTY and the
Special Court for Sierra Leone respectively, the presence of French troops
35.
36.
37.
38.
Juan E. Mkndez, United Nations, Statement by the Special Adviser on the Prevention of
Genocide (15 Nov. 2004), available at http://www.un.org/News/dh/infocus/westafrica/
mendez-15nov2004.htm. Human rights advocates openly called for a Security Council
referral of the situation in C6te d'lvoire to the ICC Prosecutor. See FIDH, FIDH Calls
the Security Council to Refer the Situation in C6te d'lvoire to the International Criminal
Court, 9 Nov. 2004, available at http://www.fidh.org/F1DH-calls-the-Security-Councilto.
Republic of C6te d'lvoire, Declaration Accepting the Jurisdiction of the International Criminal Court, signed 18 Apr. 2003, available at http://www.icc-cpi.int/NR/
rdonlyres/74EEE201-OFED-4481-95D4-C8071087102C/279844/ICDEENG.pdf.
See also
Schabas, supra note 17, at 39. t h e declaration apparently aimed at bringing the rebels
to justice.
Committee to Protect Journalists, Attacks onlthe Press 2004: Ivory Coast, 14 Mar. 2005,
available at http:Nwww.cpj.org/attacks04/africa04/ivory,html.
See HOFNUNG,
supra note 24, at 73.
I
!
f
I
b
b
4
,
I
1
1
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2009
64 1
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I
I
and other international pressures clearly played an important role in how
the government perceived the threat of ICC intervention. t h e progressive
internalization of accountability in the culture of international relations also
shapes such political perceptions. By 2004, the precedents of the ICTY and
ICTR and the establishment of the ICC had eroded a prevalent culture of
impunity and gradually had shifted the boundaries of power and legitimacy.
The theory of general deterrence assumes that the threat of punishment is
intended to discourage "deviance" by internalizing and reinforcing the existing mores of society. In this light, the most significant effect of tribunals may
be their ability to instill inhibitions against mass atrocities and to thereby
alter the very conception of sustainable power. Accordingly, the threat of
ICC prosecutions simply may have reminded the lvorian political leaders of
the ever more important link between lawful conduct and political survival
in the post-ICC era.
6. Defeat Through Isolation: The Case of the Lord's Resistance
1
1.
Army in Uganda
A significant preventive impact of tribunals is how international criminal justice shapes incentives to cut support for military forces responsible for atrocities. The judicial romantics may overlook the fact that rrrilitary confrontation
may be the most immediate way to prevent atrocities. It i s an uncomfortable
realization for proponents of justice that after-the-fact lengthy court proceedings are hardly reassuring to unarmed civilians facing the impending threat
of atrocities by notorious militia. In turn, the political realists may overlook
the fact that leaders facing military defeat or loss of power are particularly
inclined to request amnesties. In other words, conditioning a peace agreement on an amnesty may itself be the result of a weak bargaining position.
Unlike the Nuremberg Tribunal, the ICC does not have a standing army to
defeat enemies and occupy countries. The L R A case demonstrates, however,
that in certain cases the tribunals' stigmatization of those responsible for mass
atrocities can result in international isolation, thereby eroding their political
influence and the capabilities of military forces responsible for atrocities.
The debate on whether LRA leaders should be offered an amnesty in
exchange for peace disregards the history of this rebel movement and why
it has come to the negotiating table with such enthusiasm, only to revert
to its habitual violence and cruelty. Since the LRA's inception in 1986, and
despite the horrific scale of its atrocities in Acholiland in northern Uganda,3q
39.
For the earlier history of northern uganda, including the construction of the Acholi as a
distinct population group in the 19th and early 20th century, see ALLFN,supra note 16,
at 25-37.
642
Vol. 31
the international community has failed to take any decisive steps to help
Uganda defeat this ruthless insurgency. The LRA forcibly recruited tens of
thousands of children, terrorized them to commit atrocities against their
own parents and communities, and instilled a reign of terror by attacking
towns and villages and amputating limbs as a signature punishment for
those suspected of siding with the g ~ v e r n m e n tAlthough
.~~
the LRA claims
to represent the grievances of the northern Acholi against the government of
President Museveni, almost all of its victims are Acholi. Instead of confronting the LRA, the UN and donor states pursued a policy of pressuring the
government to negotiate with LRA leader Joseph Kony-a self-proclaimed
prophet whose only cognizable political demand is to establish a state ruled
by the Ten Commandments.
During the Sudanese north-south civil war in the 1980s and 1990s,
Khartoum supported the LRA's efforts to destabilize Uganda in exchange for
its support of the Sudan People's Liberation Army (SPLA) insurgent^.^' With
the progressive consolidation of the north-south peace process in 2003, the
LRA became less valuable to Sudan. However, the LRA was still sufficiently
useful for Sudan's inrluence in the region that it could justify continued use
of bases in Sudanese territory from which to launch attacks against civilians in Uganda. The LRA's ability to retreat into Sudan beyond the reach
of Ugandan military forces was a crucial element of its military success.
Despite several agreements with the Ugandan government, in which the
Sudanese government feigned willingness to stop sponsoring and to disarm
and disband the LRAf4*the situation did not substantially change until the
2003 ICC referral by tlie Ugandan g ~ v e r n m e n t .At
~ ~this critical juncture,
the ICC's intervention increased the cost incurred by Sudan for harboring
the LRA, thus setting into motion a chain of events that resulted in the LRA
40.
41.
42.
43.
For more information on the atrocities committed by the LRA, see Report of the United
Nations High Commissioner for Human Rights on the Mission Undertaken by her Office to Assess the Situation on tlie Ground with Regard to the Abduction of Children
from Northern Uganda, U.N. ESCOR, Commfn on Hum. Rts., 58th Sess., ll ll 15-1 9,
U.N. Doc. E/CN.4/2002/86 (2001); HRW, STOLENCHILDREN:
ABDUCTION
AND RFCRUITMENT
IN
NORTHERN
UGANDA
(Mar. 2003), available at http://www. hrw.orglreports/2003/uganda0303/
uganda0403.pdf; Int'l Crisis Group, Conflict History: Uganda, available at http://www.
crisisgroup.orglhome/index.cfm?id=2346&l=l;
Press Release, Security Council, Security
Council Presidential Statement Demands Release of Women, Children by Lord's Resistance
Army, Expeditious Conclusion of Peace Process, U.N. Doc. SCl8869 (1 6 Nov. 2006).
For an analysis of the inter-relations between thelconflicts in southern Sudan, northern
Uganda, and Dafur, see John Prendergast, Resolying the Three Headed War from Hell
in Southern Sudan, Northern Uganda, and Darfur {Feb. 2005)' available at http://www.
wi lsoncenter.org/events/docs/OP003.pdf.
See Report of the United Nations High Commissioner for Human Rights, supra note 40,
at 11 32(d), 33(a).
Press Release, Intll Criminal Court, President of Uganda Refers situaiion Concerning
the Lord's Resistance Army (LRA) to the ICC (29 Jan. 2004).
11
IL
I
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i
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i
P
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2009
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643
losing its ability to launch offensive operations, which led to a sharp drop
i n violence in Northern Uganda and the consequent willingness of Joseph
Kony to negotiate a peace settlement.
Despite a complex range of factors, there is a noticeable link between the
ICC's exercise of jurisdiction over the case and the LRA's demise. In November
2003, immediately prior to the referral of the situation to the ICC, the U N
Office for the Coordination of Humanitarian Affairs (OCHA) reported that "the
humanitarian situation i n Uganda continued to deteriorate," "[t] he outlook
for 2004 does not look promising due to the expansion of [LRA] attacks," the
LRA "continues to use its bases i n southern Sudan to launch its operations,"
and "the number of internally displaced persons . . . has reached a figure of
over one million."44 Given the high profile of this situation as the first one
before the ICC, Uganda's referral made it more difficult for Sudan to continue
supporting the LRA. W i t h the ICC stigmatizing the LRA leadership, Sudan
was pressured to adopt a March 2004 Protocol-only four months after the
ICC referral-allowing Ugandan forces to eliminate LRA bases i n southern
S ~ d a n . This
~ ' move made the International Crisis Group conclude that "[t]
he ICC has already had a positive impact o n the peace process by sobering
By' ~November 2004,
the LRA and influencing Khartoum to reduce ~ u p p o r t . " ~
contrary to its bleak prognosis a year earlier, O C H A reported:
The weakening of the LRA in southern Sudan and northern Uganda by the
Ugandan army, the apparent lack of control by the leader of the LRA over his
troops in northern Uganda and the numerous defections of LRA commanders
and foot soldiers since April 2004 have brought . . . a ray of hope that the end
of this long ordeal is getting closer.47
f
i
The report went on to conclude:
Since July [20041, there has been a marked improvement in the general security situation following high rates of LRA desertions . . . . LRA attacks on
camps became less frequent, creating a feeling, especially among government
officials, that the LRA had been significantly weakened and that the war was
about to end.4R
UN OFFICE
FOR THE COORDINATION
OF HUMANITARIAN
AFFAIRS,
CONSOLIDATED
APPEALS
PRO(ESS: UGANI~A
2004, at 1 (Nov. 2003).
45. The operation was called "Operation Iron Fist 11." For a brief discussion of this operation,
see HRW, UPROOTED
AND FORGO~EN:
IMI'UNITY
AND HUMAN
RIGHTSAHUSES
IN NORT~IERN
UGANDA
(Sept. 2005).
Group, Shock Therapy for Northern Uganda's Peace Process, Africa Brief46. INT'LCRISIS
ing No. 23, 1 1 Apr. 2005, available at http://www.crisisgroup.org/home/index.
cfm?id=3366&1=1.
F O R TIHE COORDINATION
OF HUMANITARIAN
AFFAIRS,
CONSOLII~ATED
APPEALS
PRO(-ESS:
UGANDA
47. UN OFFICE
2005, at 1 (Nov. 2004).
44.
48.
Id. at 5 .
In the months that followed, LRA leader Joseph Kony retreated into the
DRC and attempted to restore discipline within his depleted ranks. On 2
October 2007, Kony killed his second in command, Vincent Otti, because
of suspicion lhat Otti might betray him in a deal with Uganda.49Under
these circun~stances,Kony, with the conditional support of Uganda and
several key donor states, insisted on an amnesty from ICC arrest warrants
as a precondition to a peace settlement. By then, the LRA had been so
weakened and divided that it no longer posed a serious threat to Uganda,
though itkontinued to commit atrocities in the DRC.50Furthermore, it soon
became apparent that Kony had simply used the negotiations as a ploy
to buy time so he could rehabilitate the LRA. On 23 July 2008, Ugandan
General ~ r o n d aNyakairima explained that the LRA was amassing wealth
to purchase more weapon^.^'
Absent the political pressure arising from the ICC referral, Sudan may
have beeil less willing to allow for the expeditious elimination by Ugandan
forces of LRA bases in the south. The view that ICC arrest warrants were
an impediment to peace emerged only after the LRA had been significantly
weakened and atrocities in Uganda had ended.52Kony's vulnerability forced
him to demand an amnesty, but even then he could not be trusted to negotiate peace in good faith.
One, of the issues impacting national reconciliation in Uganda is
whether the ICC undermines traditional justice rituals proposed by some
Acholi leaders. Some argue that The Hague is too remote to impact Acholiland, the ICC i s an elitist institution out of touch with local realities, and
Western-style trials are not the only way to achieve justice in a world with
pluralistic legal tradition^.^^ The fact that some northern leaders distrust
President Museveni's government for historical reasons also has cast doubt
on the role of the ICC as conspiracy theories abound that the referral was
21 Dec. 2007, available at http://
49. See Otti "Executed by Uganda Rebels," BBC NEWS,
50.
51.
52.
news.bbc.co.uk/2/hi/africa/7156284.stm.
~hdse
acts were particularly retaliation for "Operation LightingThunder," a joint operation
launched in December 2008 by Uganda, the DRC, and South Sudan to defeat the LRA
and arrest its leaders. The LRA retaliated by killing over 500 civilians. News Release,
HRW, DR Congo: LRA Slaughters 620 in "Christmas Massacres" (17 Jan. 200% available at http:Nwww.hrw.orglen/news/2009/01/17/dr-congo-lra-slaughters-620-christmasmassacres.
Joshua Kato, Stop LRA Now, Says Aronda, NEWVISION(Kampala), 22 July 2008.
Local peace initiatives, such as the Acholi Religious Leaders Peace Initiative have supported the demands for amnesty and have condemned the "interference" of the ICC.
See Adam Branch, lnternatronal)ustice, Local Injustice, DISSENT,
Summer 2004, at 22.
For further criticism of the ICC intervention in the situation of northern Uganda, see
also Adam Branch, Uganda's Civil War and the Politics of ICC Intervention, 2 1 ETHICS &
INT,'L
AFF. 179 (2007).
53.
On traditional forms of justice in Northern Uganda, such as mato oput, see ALLEN,
supra
I
no;e 16, at 165-68.
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actually intended to prolong the war in Acholiland. While elitist institutions
must be sensitive to local demands and avoid a neo-colonial approach to
justice, the demonization of the ICC as a foreign imposition is unwarranted.
It cannot be overlooked that traditional justice mechanisms would not have
succeeded in pressuiing Sudan in the same way as the imprimatur of the
ICC. Furthermore, when the ICTY was established, the common refrain was
that it favored European over African victims. The ICC's entanglement with
Africa, reflecting the worst atrocities within the Court's jurisdiction, should be
viewed as a welcome departure from decades of neglect. In the LRA cases
in particular, the focus of the ICC played a role in ending the war exactly
because it drew attention to a situation that the international community
had disregarded for almost two decades.
Criticism of the ICC also ignores the fact that it issued arrest warrants
only against the top five LRA leaders, of whom only three are still alive.
This means that all other LRA menibers, many of whom are victimized child
soldiers, can benefit from amnesties or traditional justice mechanisms. From
the viewpoint of post-conflict peacebuilding, nothing stands in the way of
a local reckoning with the past. From the viewpoint of peace negotiations,
Kony's duplicity and bad faith has an- ply demonstrated the false premise
that an ICC amnesty is all that stands in the way of a peace agreement.
Rather, it was the involvement of the ICC that generated the strenuous but
indispensable negotiations between the Ugandan government and the LRA
on how to deliver justice to the victims of the conflict. Without the ICC
threat, it is unlikely that the issue of individual accountability would have
been addressed seriously or that the LRA leaders would have accepted anything like the Agreement on Accountability and Reconciliation. Its annex,
signed in early 2008, provides that "[a] special division of the High Court
of Uganda shall be established to try individuals who are alleged to have
committed serious crimes during the conflict."54While this agreement seems
to be directed at challenging ICC jurisdiction and also questions Kampala's
support for the
the recent willingness to sincerely negotiate how to
deliver justice to the Acholi people, whether domestically or in The Hague,
cannot be overemphasized. Possible ICC proceedings had a similar, positive
55.
I
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54.
*
Annexure to the Agreement on Accountability and Reconciliation (1 9 Feb. 2008), 1 7,
available at http://www.iccnow.org/documents/Annexure~to~agreement~on~Accountability-signed-today.pdf. However, after the conclusion of this agreement, the Ugandan
President reportedly promised the LRA leader? that instead of trials, a "trachtional blood
settlement mechanism" would be used. AMNESTY
INT'L,
UGANDA:
AGREEMENT
AND ANNFX
ON
ACCOUNTARILITY
AND RECONCILIATION
FALLS
SHORT
or A COMPREHENSIVF
PI AN TO END IMI~NITY
8 (Mar.
2008), available at http://www.amnesty.orden/library/info/AFR59/OOl/2008.
The Ugandan government also committed itself to requesting the Security Council to
defer the ICC investigations and prosecutions in Northern Uganda. Security Council
Report, UgandaILRA: Update Report No. 1, 11 Apr. 2008, available at http://www.
securitycounciIreport.org/site/c.gIKWLeMTlsC/b.4018489/.
Vol. 31
impact on the delivery of justice in Kenya with respect to investigating the
JanlJary2008 post-election violence. A commission of inquiry recommended
the establishment of a special, internationalized tribunal to investigate and
prosecute those most responsible for the violence and announced that it
w o l ~ l dhand a list of the chief suspects to the ICC Prosecutor if a tribunal
was not set up quickly.'"
However promising the delivery of local justice may be to the interests
of victimized communities, such a grassroots, victim-centered approach must
be balanced against broader imp1ications for Africa and the international
community. The Acholi people of Northern Uganda are clearly not the only
constituencies of this situation before the ICC.57While every effort should
be made to ensure local empowerment and a cessation of war, the effect
of impunity in a situation already before the ICC would have far-reaching
consequences elsewhere, especially in Africa. Even a superficial observer
would recognize that an amnesty precedent for Joseph Kony would have
catastrophic consequences for the ICCfs credibility in the Darfur situation
where leaders such as President Bashir of Sudan are eager to find a pretext
to escape liability. Although it may be desirable to take into account the
concerns of local communities, the constituency of international criminal
justice extends far beyond this local level.
i
C. Stigmatization Is Better than Nothing: The Case of Darfur
!
The unwillingness of the international community to effectively confront
Sudan's genocide by attrition in Darfur i s a conspicuous failure. Absent
economic sanctions, no-fly zones, and an effective UN-African Union (AU)
.peacekeeping force with a robust mandate, Sudan's reign of terror has continued unabated. Moral condemnation intended for public consumption has
masked a policy of appeasement motivated by Security Council members'
geopolitical concerns such as the "war on terror," energy security, and the
arms trade. China has invested heavily in the Sudanese oil industry and is,
J
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56.
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57.
For more information, see News Release, HRW, Establishing a Special Tribunal for
Kenya and the Role of the International Criminal Court (25 Mar. 2009), available at
http://www.hrw.org/en/news/2009/03/25/establishing-speciaI-tribunal-kenya-and-roleinternational-criminal-court. See also EU i n Kenya Poll Tribunal Threat, BBC NEWS,
18
Nov. 2008, available at http:Nnews.bbc.co.uk/go/pr/fr/-/2/hi/africa/7736011.stm; Luis
Moreno-Ocampo, Chief Prosecutor, ICC, Address to the Assembly of States Parties 2 (14
Nov. 2008), available at http://www2.icc-cpi.int~NR~rdonlyres/50F9DOFA-33AO-48B3942E-4CFF88CA3A27/0/1CCASPASP7StatementProsecutor.pdf.
For a d~scussionon the different constituencies in international criminal law, see Fred6ric Mkgret, International Prosecutors: ~ c c d u n t a b i l i tand
~ Ethics 29-37 (Leuven Ctr.
tor Global Governance Studies, Working pap& No. 18, 2008), dvailaOle at http://papers.
ssrn.com/sol3/papers.cfm?abstract-id=13 13691.
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together with Russia, the most important supplier country of military equipment to Sudan? Antiterrorism collaboration with Khartoum intelligence also
has become increasingly valuable for the United States in gathering information about al-Qaeda and Iraqi insurgent groupsIs9 with the Department
of State labeling the Sudanese government "a strong partner in the War on
T e r r ~ r . "This
~ ~ alliance explains the rather ambiguous role the United States
has played in condemning-but not seriously challenging-Khartoum for its
Darfur campaign. Moreover, no Western government wanted to endanger
the sensitive negotiations leading to the 2005 Comprehensive Peace Agreement, which ended the decades-long war between northern and southern
Sudan. In the words of an analyst, "Khartoum effectively held the carrot of
peace in front of the noses of the international community while it wielded
the stick in D a r f ~ r . " ~ '
This political context has sent the message to Sudan's leaders that mass
murder of groups deemed to be threats to the absolute power of Khartoum's
ruling clans is an effective policy. Against this backdrop, the Security Council's referral of the Darfur situation to the ICC in 2005"* i s a pretence of
decisive action rather than a genuine effort to end the ongoing violence,
especially given the Security Council's subsequent lack of pressure on Sudan to cooperate with the ICC and surrender accused persons. Despite the
Prosecutor's periodic reports to the Security Council on Khartoum's noncooperation, no concerted action has been taken.63The arrest warrant against
Sudan's President Hassan al-Bashir has been criticized as judicial folly and
58.
59.
60.
61.
62.
O n the alleged use of these weapons in the Darfur conflict, see AMN~STY
INT'L,SUDAN:
ARMSCONTINUING
TO FUFI SERIOUS
HUMANRIGHTS
VIOLATIONS
IN DARFUR
(May 2007), available
at http://www.amnesty.org/fr/I1brary/info/AFR54/Ol9/2007/en.
Greg Miller & Josh Meyer, U.S. Relres on Sudan Despite Condemning It, L.A. TIMES,11
Jun. 2007, at A1 See also Ken Silverstein, Official Pariah Sudan Valuable to Anierica's
War on Terrorism, L.A. TIMES,29 Apr. 2005, at A l ; Scott Shane, C.I.A. Role i n Visit o f
Adn?inrstration, N.Y. TIMLS,18 Jun. 2005,
Sudan Intelligence Chief Causes Dispute W ~ t h i n
at A7; Ewen MacAskill, CIA Recruits Sudanese to Infiltrate Arab Iihadi Groups, GUARDIAN,
12 Jun. 2007, available at http://www.guardian.co.uk/world/2007/jun/l2/usa.israel; RE)
Pusuc~,THF DARFUR
RFSISTANCE:
WHOTHEY
ARE,WHATTHFYWANT,AND WHATTHEYNEED
TO HELP
CREATE
A NEWSUDAN 28 (2006).
OF THE COOKDINATOR
FORCOUNTERTEKKORISM,
U.S. DEP'T
OF STAIE, COUNTRY
REPOKI~
ONTERKOKOFFICE
ISM 2006, ch. 3 (30 Apr. 20071, available at http://www.state.gov/s/ct/rls/crt/2006/82736.
htm.
Prendergast, supra note 41, at 2. See also GEKARD
PRUNIFR,
DARFIJK:TIIF AMIZICUOUS
GENOCIDE 122 (2005); JUIIE FLINT& ALEX
DE WAAL,DARFUR:
A SHORT HISTORY
OF A LONGWAR128
(2005).
Referrrng the Situation i n Darfur Since 1 July 2002 to the Prosecutor o f the International
.
U.N. SCOR, 60th Sess., U.N.
Criminal Court, adopted 3 1 Mar. 2005, S . C . ~ R ~ S1593,
Doc. S/RES/1593 (2005).
Only one presidential statement was issued after the June 2008 briefing of the Prosecutor, in which the Security Council urged thd government of Sudan to cooperate with
the Court. Statement by the President of the skcurity Council, U.N. SCOR, 59 12th nitg.,
U.N. Doc. S/PRST/2008/2 1 (2008).
1 1
63.
648
Vol. 31
an impediment to peace negotiationsIh4 despite the mandate entrusted to
the ICC Prosecutor by the UN Security Council. But even in this seemingly
impossible situation, there is evidence to suggest that tribunals can help
prevent atrocities by creating pressures and exacerbating internal divisions
among perpetrators as they attempt to use each other as scapegoats. There
are indications that, following the ICC's investigation, accountability has
become an important factor in Khartoum's political calculus. The pressures
to assign blame to others has created appreciable fractures in Khartoum's
alliance with the notorious Janjaweed militia and increased incentives to
negotiate a peace settlement.
O n 27 April 2007, the ICC issued arrest warrants against Janjaweed
rrrilitia leader Ali Kushayb and Sudan's Minister of Humanitarian Affairs,
Ahmed H a r ~ nO
.n
~~
14 July 2008, the ICC Prosecutor requested an arrest
warrant against B a ~ h i rwhich
, ~ ~ was issued on 4 March 2009.h7As an immediate reaction to the arrest warrant, the Sudanese government expelled more
than a dozen humanitarian aid organizations, leaving more than one million
people without access to food, water, and healthcare services.68Despite the
fact that the issuance of the arrest' warrant and a strenuous reaction from
the government had been widely e x p e ~ t e dWest6rn
,~
governments seemed
staggered and were criticized for not anticipating Khartoum's move.70This
strategy of presenting the arrest warrant as a cause of further suffering of
Darfuris-under the pretext that humanitarian organizations had provided the
ICC Prosecutor with information7'--has proven to be successful to a certain
r
See, e.g., Darfur Mediator Says Bashir Warrant Imperils Talks, REUTERS,
26 Mar. 2009.
Prosecutor v. Harun, Decision on the Prosecution Application Under Article 58(7) of
the Statute, ICC-02105-01107-1 (27 Apr. 2007).
Situation in Darfur, Sudan, Public Redacted Version of Prosecution's Application Under
Article 58 Filed on 14 July 2008, ICC-02105-157 (12 Sept. 2008).
Prosecutor v. Al Bashir, Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC-0210501109-1 (4 Mar. 2009). The Pre-Trial Chamber confirmed the charges of war crimes
and crimes against humanity but did not follow the Prosecutor's view that there were
reasonable grounds to believe that Bashir had acted with genocidal intent.
U N Office for the Coordination of Humanitarian Affairs, Sudan: Situation Report #2 (1 3
Mar. 2009); Darfur: UN-African Peacekeeper Shot, as Concern Grows Over Humanitarian Aid, U N NEWS
CTR.,10 Mar. 2009.
Already after the Prosecutor's application, Sudan had denounced the ICC and threatened
that it could no longer guarantee the safety of UN-AU peacekeepers in the Darfur if an
arrest warrant was issued. See, e.g., Sara Darehshori & Suliman Baldo, Sudan, lustice
and Peace, HRW, 16 July 2008, available at http://www.hrw.org/en/news/2008/07/15/
sudan-justice-and-peace.
Eric Reeves, Khartoum's Expulsion of Humanitarian Organizations, SUDAN TRIBUNE,
26
Mar. 2009, available at http://www.sudantribune.com/spip.php?article3O643.
The Prosecuter has refuted this allegation. See ICC Prosecutor Says He Received "Zero"
Information from NGO's in Sudan, SUDAN TRIBUNF,
2 1 Mar. 2009, available at http://www.
sudantribune.corn/spip.php?article30580. Reportedly the Sudanese government only
waited for a chance to expel the organizations. See Lynsey Addario & Lydia Polgreen,
Aid Groups' Expulsion, Fears of More Misery, N.Y. TIMES,
23 Mar. 2009, at A6.
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,
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649
extent. Numerous members of the African Union and the Arab League harshly
criticized the arrest warrant, including Libya's leader Muamniar Gaddafi, who
decried the ICC as a "new form of world t e r r ~ r i s m . "Moreover,
~~
Western
governments felt obliged to balance support for the Court against concern
for displaced populations relying on the assistance of humanitarian agencies,
thus strengthening Bashir's bargaining position. Ignoring the arrest warrant
and Sudan's obligation to cooperate with the Court under Security Council
Resolution 1593, the Security Council only urged the Sudanese government
to reverse the expulsion in a non-binding statement.73Sudan also enlisted
the support of the African Union and Arab League in calling for a Security
Council deferral of the case ~ ~ n d Article
er
16 of the Rome Statute on the
grounds that it was an impediment to the peace process. So far, however,
Western veto powers in the Security Council have blocked such a deferral,
and support from African Union leaders for Bashir is clearly not as solid
and unanimous as portrayed by Khartoum. In the context of Bashir's visit to
a summit in Ethiopia, for instance, an African diplomat spoke of "an ironic
show of solidarity" by African leaders who fear that if Bashir i s sent to t h e
Hague, they could be next.74
Despite this overt posture of defiance, Sudan has taken considerable
steps to relieve pressure on its senior leader. In October 2008, the Janjaweed
leader Ali Kushayb was arrested to face prosecution before Sudan's own national courts. There i s little doubt that he was being used as a scapegoat for
the Darfur atrocities in order to preempt the ICC's exercise of jurisdiction, a
fact noted by the international community and the media.7sSeveral months
earlier, in March 2007, Time reported: "Cracks are beginning to appear in the
ranks of Darfur's feared Janjaweed militia" as a result of "fear that the Sudan
government may betray Janjaweed commanders to the [ICC]."7hA Darfur
rebel leader remarked, "Khartoum hired the Janjaweed to kill their brother
Darfurians. Now the Janjaweed have found out they were deceived-and
they suspect the government will sell them out to the I.C.C. We are expecting
the number of defectors to increase by the day."77And while Bashir has been
72.
Sudan Leader i n Qatar for Summit, BBC NEWS,
29 Mar. 2009, available at http://news.
bbc.co.uk/2/hi/africa/7970892 .stm.
26 Mar.
73. Patrick Worsnip, Darfur Mediator Says Bashir Warrant Imperils Talks, RFUT~RS,
2009.
74. Peter Heinlein, Sudan Gives Sudan's Bashir a Warm Welcome, VOA NEWS,
2 1 Apr. 2009,
available at http:Nwww.voanews.com/englishR009-04-21-voa2 5.cfm.
75. The New York Times observed that this "move is widely being interpreted as a way for
Sudan to improve its image abroad and try to head off the possible genocide prosecution
of the country's president, Ornar Hassan al-Bashir, in the International Criminal Court."
Jeffrey Gettlernan, Sudan Arrests Militia Chief Facing Trial, N.Y. TIMES,13 Oct. 2008, at
A9.
76. Alex Perry, Defections i n Darfur?, TIME,21 Mar. 2007, at 42-43.
77. Id. at 43.
650
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trying to portray himself as a national hero defying neo-colonialist attempts
in the form of judicial intervention, support for him is far from unanimous
in Sudan. In particular, Darfuris have been most outspoken in supporting
Bashir's surrender, arguing that "the arrest of al-Bashir will bring freedom
to people of Sudan. . . . Sudan will enter a new period."78
Beyond fractures between the government and the Janjaweed, the looming threat of ICC arrest warrants has also created an incentive at least to feign
a willingness to end the war in an apparent attempt to extract an amnesty
for good behavior. In November 2008, Bashir announced a ceasefire with
the Darfur rebels. Although its significance should not be overemphasized
given that a series of previous peace agreements has failed, this ceasefire
was directly linked to the imminent arrest warrant by the government itself.
Based on local sources, the BBC reported: "the government hopes this plan
will be enough to convince the international community to defer the case
against Mr. Bashir." Indeed, Sudan's Foreign Minister asserted: "If we come
up with the clear roadmap for Darfur, then I think we can have the moral
authority to begin to ask . . . whether they could defer the decision by the
ICC."79Altho~ghBashir has traveled to several non-state parties to the ICC
in clear defiance of the arrest warrant, he is obviously concerned about
appearing in a good light and has even promised justice to the victims in
Darfur. One month after the issuance of the arrest warrant, he stated that
once reconciliation was achieved, the crimes committed in Darfur would
be investigated and prosecuted by the Sudanese authoritie~.~~)
Clearly, the
issue of justice and accountability is on the table and is being discussed
more seriously in Sudan. This trend is illustrated by the proposal of the
leader of the opposition Umma party, Sadiq al-Mahdi, to establish a hybrid
court consisting of Arab, African, and Sudanese judges," while the most
prominent opposition leader, Hassan Al-Turabi from the Popular Congress
Party, was detained for two months after openly calling on Bashir to surrender to the
The political posturing by Sudan to deflect attention from President
Bashir's ICC indictment should not be overestimated. Standing alone, the ICC
can embarrass and isolate the Sudanese leadership and exact a minimal cost,
78.
I
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79.
80.
81.
82.
See HRW, Voices from Sudan, 4 Mar. 2009, available at http://www.hrw.org/en/
news/2009/03/04/voices-sudan?print.
Sudan Declares Darfur Ceasefire, BBC NEWS,12 NOV. 2008, available at http://news.
bbc.co.uk~2/hi/africa/7724220.stm.
Sudan President Says Reconciliation to Precede justice, ?DAN TRIBUNE,
8 Apr. 2009,
available a t http:~sudantribune.com/s~i~.php?article3~8~4.,
Sudan Ex-PM Proposes Hybrid Court td Try Darfur Suspects, SUDANTRIBUNE,
28 Mar. 2009,
available at http://www.sudantrib~ne.~~m/spip.php?article3~~667.
Sudan's Turabi Says Position Unchanged on Bashir and ICC, SUDAN TRIBUNE,
10 Mar. 2009,
available at http:Nwww.sudantribune.com/spip.php?article3O451.
,
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,
but it cannot radically alter the political equation in Darfur. While much of
the ethnic cleansing is a fait accompli, atrocities against civilians continue
in the face of international indifference to the victims and diffidence to those
in power." In view of the facts however, it i s difficult to conclude, as some
have suggested, that the ICC's intervention is exacerbating the atrocities in
Darfur by cornering President Bashir and thus providing a disincentive to
peace. While there is ostensible solidarity with him in defiance to the ICC,
there i s no telling how his internalional stigmatization and falling political
fortunes may be used by competitors to usurp his authority in the long
run. Bashir's dedicated efforts to distract the international community from
focusing on the arrest warrant reveals his true concerns about the elections
scheduled for early 201 0. If anything, his defiant statements underscore the
tremendous importance that he attaches to the ICC arrest warrant against
him. A notable instance is his statement to the April 2009 African Union
sumn-lit in Ethiopia where he emphasized:
We went to this summit to show those who said we couldn't travel outside Sudan that we can travel outside Sudan. . . . Unlike what people might think, the
issued arrest warrant has rather strengthened our bond with countries of [the]
African Union (AU), Arab league and also with international organizations. . . .
It also has strengthened the unity of the Sudanese people.R4
At the verytleast, President Bashir has understood that the arrest warrant
has significantly undermined his standing as an international statesman,
which could be detrimental to his political fortunes within Sudan itself,
where many opponents may seize on his isolation to advance their own
arr~bitionsand interests.
Even if it is not possible to demonstrate with any certainty that the ICC
has had an effect on preventing atrocities in the Darfur, it cannot be said
that the situation has somehow been exacerbated as a result. It beguiles
the imagination to accept the argument that after years of massive atrocities
against civilians, all that stands in the way of peace is the demand for what
has thus far amounted to symbolic justice. Against a backdrop of shocking
indifference to the "ethnic cleansing" can-~paignin the Darfur, it i s difficult
to see how this assertion is a realistic assessment of a dire situation in which
the ICC arrest warrants appear to be the only glimmer of hope. t h e proposition that Khartoum would improve its behavior absent ICC indictments is at
83.
144
See, e.g., Report ofthe Secretary-Generalon
Deployment of the African- Union-United
Nations Hybrid Operation in Darfur, U . N . SCOR, 1 15, U.N. Doc. Sl20081443 (7 July
20081; Report of the Secretary-General on th4 Deployment of the African-Union-United
Nations Hybrid Operation in Darfur, U.N. SCOR, ll 33, U.N. Doc. S/2008/781 (12 Dec.
2008).
/
Sudan's President Arrives in Ethiopia Amid Western Boycott, SUDAN
TRIBUNE,
22 Apr. 2009,
available at http://sudantribune.corn/spip.php?article3O957.
!
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best utterly na'ive and at worst a cynical appeasement of power motivated
by questionable political ends. The stigmatization of President Bashir is
surely the very least that the international community can do in the face of
such abominations.
I
V.
CONCLUDING REMARKS: T O W A R D S A N E W JUDICIAL REALISM
The experience of the ICC demonstrates that even outside the confines of
the courtroom, tribunals can make important contributions to achieving
peace and preventing atrocities. Even without victor's justice and even where
tribunals do not operate in ideal circumstances with substantial support
from the international community (which conditions judicial cooperation
by recalcitrant states on important national interests), the introduction of
legitimacy can shape incentives to end or prevent human rights abuses. The
mere threat of prosecution during a critical time of escalating violence, the
political isolation and military decline that result from being stigmatized as
an international fugitive, a weakened bargaining position after the issuance
of an arrest warrant and the consequent search for scapegoats-these scenarios illustrate the manifold ways, some subtle and others blunt, in which
accountability can impact the cost-benefit calculus of using atrocities as an
instrument of power.
I began by reducing the peace versus justice debate to the caricature of
the nai've "judicial romantic" blindly pursuing justice in contrast with the
cynical "political realist" indulging the dictates of power. The debate has
become far more complex since it first arose in the context of the ICTY.
Both sides have now tempered their expectations, whether in regard to how
much tribunals can realistically achieve in preventing atrocities or the real
political costs of leaving genocide, war crimes, and crimes against humanity
unpunished.The judicial romantics are now somewhat sober, and the political
realists somewhat softer, but the underlying tension between the pursuit of
ideals and the constraints of political reality remains. When considering these
different ends of the spectrum, one must not forget that while prosecuting
heads of state and other leaders before tribunals is no longer unimaginable,
the balance i s still firmly on the side of political expedience and submission
to power rather than to justice. The still emerging culture of international
accountability continues to navigate through the tenacious remnants of the
culture of impunity that prevailed throughout much of the UN era. While the
idea of the ICC is appealing to the many states that have ratified its statute,
i l for the first ti,me referred a situation to the ICC,
and the Security C o ~ ~ n chas
support is still lacking at crucial momedts when international pressure is
it
required to ensure execution of arrest wa,rrants and other forms of judicial
cooperation. The failure to do justice will likely remain a far bigger problem
I
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when compared to the fear that tribunals will stand in the way of peace
negotiations. Indeed, as the reality and implications of prosecutions before
tribunals becomes increasingly apparent in a variety of contexts, elites who
are both the primary actors in the international lawmaking and institutionbuilding processes and the potential defendants at the ICC will constantly
reassess their view of the utility of international criminal justice.
Tribunals may experience alternating periods of expansion and retreat;
there may be a concern with consolidating global tribunals or a preference
for local justice at the grassroots level. The process of learning by trial and
error will continue, especially as the "complementarity" scheme envisaged
under the Rome Statute begins to unfold in a broad range of contexts. But
there is no going back to the pre-ICTY world in which genocide could be
committed with impunity. Against all odds, the rules have changed, or at
least are moving in the direction of fundamental justice.
A mutually reinforcing equilibrium between peace and justice will be
achieved only through a concerted, though gradual, process of internalizing accountability as a fact of political life, as an inescapable ingredient
of sustainable power. The cost of an amnesty in a particular situation must
always be weighed against the imperative of transforming the habits of
those in power. Every exception sends the message that criminal liability
for the most serious international crimes can be negotiated. The challenge
in this historical evolution of behavioral norms is to balance the exigencies
of local contexts with the long-term requirements of ushering in a new
global ethos that bridges the gap between ideals set forth in the 1948 UN
Declaration of Human Rights with the realities of governance. The preamble
of the Declaration recognized that "the inherent dignity and . . . the equal
and inalienable rights of all members of the human family i s the foundation of freedom, justice and peace in the world."" We witness, more than
sixty years later, the catastrophic toll that disregard of this admonition has
brought upon humankind.
Beyond considerations of global governance, we should also consider
what our pursuit or lack of commitment to justice says about our fundamental self-conception. One human rights lawyer who was interviewing
distraught Darfur refugees at a camp in Chad was repeatedly asked, "When
will Bashir be tried? . . . We are here because of [him]."u6 In contrast to the
weighty pronouncements of theorists and bureaucrats, the pithy speculations
of pundits and policymakers, it is the voices of the survivors, reflecting the
85.
86.
Universal Declaration of Human Rights, adopted 1 0 Dec. 1948, G.A. Res. 21 7A (Ill),
U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, pmbl., U.N. Doc. A181 0 (1 9481, reprinted in 43 AM. ). INT'LL. 127 (Supp. 1949).
Sara Darehshori, Op-Ed, Doing the Right Thing for Darfur-An ICC Indictment of Sudan's
President Serves Peace and justice, L.A. TIMES,
1 5 July 2008.
654
Vol. 31
intimate horrors of genocide, that most forcefully remind us that justice is
not a mere utilitarian abstraction. It is those who are left with nothing but
the desire to redeem their lost humanity who remind us of who we are as
humankind, and of the empathy and moral solidarity with the oppressed
that is the basis for true civilization. The fact that we are forced to invoke
utilitarian rationales to justify justice is itself a reflection of the sorry spiritual
condition into which we have sunk. Perhaps in the coming years and decades,
the unfolding moral impact of tribunals on global consciousness will lead us
to a new understanding in which impunity for ggnocidaires as an incentive
for peace will be ridiculed as a far-fetched illusion of a dark past.

as PDF - Iran Human Rights Documentation Center

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